ESTATE PLANNING • PROBATE • ESTATE AND
TRUST ADMINISTRATION • POST DEATH AND POST INCAPACITY
Frequently Asked Questions
Following are some of the frequently asked questions we receive
regarding estate planning, probate,
estate and trust administration, and related post-death and post-incapacity
issues in Arizona.
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What is a Will?
A Will is a written legal document with instructions for
distributing an individual’s assets after his or her death. A Will must be
formally executed as required by state law to be legally valid and enforceable.
If I have a Will, will I avoid probate?
No. In fact, having a Will
assures that your estate will pass through probate. Probate is necessary to
ensure that a Will was correctly
executed and is legally valid so your assets can pass to those named in the
What is probate?
Probate, also called proof of Will, is a
court-initiated procedure by which a Will’s validity
is proven to the satisfaction of the court. If the validity of a Will is proven
to the satisfaction of the court, the Will’s validity cannot subsequently be
challenged on the grounds of fraud, testamentary capacity, or undue duress;
however, the probate of a Will does not affect an interested party’s rights to
question the Will’s provisions. When a
decedent dies without a Will, a probate proceeding can be filed with the probate
court for the purpose of determining the rights of the deceased person’s legal
heirs, and to have the person with legal priority appointed as the personal
representative over the decedent’s probate estate.
What property is
included in an individual’s probate estate?
An individual’s probate estate
(sometimes called probate property) includes only property subject to estate
administration after the death of the
individual (or after the incapacity of the individual). In general, property owned by an individual at the time of
death or acquired by the deceased
individual’s estate after death is included in the deceased individual’s probate
estate. The property of the decedent’s probate estate passes to the decedent’s
designated beneficiaries in a Will, or in the absence of a Will, passes
according to the intestacy laws
of the State of Arizona if such individual
resided or died in Arizona. Examples of probate property are
houses, cars, furniture, stocks, bonds, and bank accounts
titled in an individual’s name. Examples of property
not typically included an individual’s probate estate
(and thus may avoid probate) are assets
which pass pursuant to a
beneficiary designation form such as with life insurance policies, annuities,
and certain retirement accounts, or assets held jointly with others with right
of survivorship, or assets titled in the name of
the deceased individual's trust.
How can a person
change his or her Will?
A Will is typically valid and effective until it is
revoked, destroyed, or invalidated by writing a new Will. Alterations to an
existing Will, such as crossing out language or adding a new provision,
may not meet the legal requirements for executing a valid
Will and may not affect
the terms of an existing Will. Changes or additions to an existing
Will should be made by a properly
executed Codicil or by a subsequent executed Will which properly revokes the
prior Will. A Codicil is a document executed in compliance with
applicable state law that properly modifies
or revokes an existing Will or
What is a trust?
trust is a legal concept for a relationship. It's a "trustee" of a Trust who
holds assets for the benefit of
or entity. There are many types of trusts that can be used to achieve a person’s
or entity’s estate planning objectives.
What is a living
A living trust, also called an inter vivos trust, is a trust
agreement which becomes effective during the lifetime of the person who created
the trust. The person who creates the living trust may change
or revoke the terms of the
trust agreement during his or her lifetime
(referred to as a “revocable trust” or a
“revocable living trust”). Because a
revocable living trust typically
contains instructions for managing trust assets during the trust creator’s
lifetime as well as instructions for distributing trust assets upon the trust
creator’s incapacity or after his or her death, a living trust
eliminate the need for conservatorship or probate proceedings
if the person has taken the appropriate
steps to title assets in the name of the trust.
What is a revocable
A revocable living trust is a trust created by
a person during the
person’s lifetime, and the creator of the
trust reserves the right to change or revoke (terminate) the trust
anytime during such person's life. A revocable
living trust is a contract made between the
person who creates the trust (sometimes
referred to as a “settlor” or “grantor” or “trustor”) and the trustee is
responsible for carrying out the terms of the trust agreement and managing the trust property for the
benefit of the person named as beneficiary. Most often,
a revocable living trust refers to a
trust whereby the creator designates himself or herself to act as the original trustee of the
trust, designates himself or herself as primary beneficiary of
the trust, and titles his or her assets
in the name of the revocable living trust. Assets may be transferred
in the name of a revocable living trust at or shortly
after the trust agreement is signed. The terms of the trust agreement govern the
assets held by the trustee of the trust during the lifetime of the person
creating the trust. This is different from a Will because a Will can only
operate to govern a person's assets after such person's death.
What is an irrevocable
An irrevocable trust is a trust in which the trust creator irrevocably transfers
assets to the trustee of the irrevocable trust for the benefit of certain named
beneficiaries, but the creator cannot alter, amend, or revoke the terms of the
trust at a later date. To qualify for exclusion from the trust creator's taxable
estate, the creator must not retain any incidents of ownership in the trust. An
irrevocable trust may be a vehicle to remove assets from the trust creator's
If I have a revocable living
trust, do I still need a Will?
Yes. A Will directs how a deceased person's assets are to be distributed after
death. A revocable living trust directs how a person's assets are to be
distributed during the person's life, and becomes irrevocable governing how the
assets of held by the successor trustee will be distributed after the creator's
death. When a revocable living trust is created, assets can be transferred to
the trustee shortly after the creation of the trust. When the person's assets
are transferred into the name of the trustee of the trust, this is called
“funding.” Sometimes, assets acquired by an individual or a married couple are
not titled in the name of the trust either because they forgot to be titled in
the name of the trust or they died before they had a chance to retitle the
assets. Having a "pour-over'' Will directs that any assets held in a decedent's
name will be transferred at death to the decedent's trust. While a decedent's
assets (assets held in the decedent’s name as opposed to the name of the trust)
must pass through the probate process, but the distribution of the assets is
according to the terms of the trust agreement because the trust is the primary
beneficiary under a "pour-over" Will. A Will also permits a person to nominate a
guardian to care for the person's minor children at such person's death.
What is a beneficiary?
A beneficiary is the person (or persons) you can choose
to receive some or all of your assets in the event of your death. Electing
beneficiaries (and keeping your choice up to date) allows you to make sure your
assets are distributed at your death in the manner you desire. If there is not a
living beneficiary named at the time of your death for any life insurance
policy, annuity, or retirement account which requires a beneficiary designation,
the benefits may become paid to your estate. In that event, a Will, if you have
one, or State intestacy laws if you do not have a Will, may determine who
becomes the recipient(s) of your assets and benefits. Usually, the beneficiary
designation forms for a life insurance policy, an annuity, a retirement account,
and certain other bank or brokerage accounts provide for the designation of a
primary beneficiary and at least one contingent beneficiary. Contingent
beneficiaries are necessary so that if a primary beneficiary does not survive
you (or is deemed to have pre-deceased you by disclaimer or operation of law),
then the asset will pass to your second choice, the contingent beneficiary. An
individual or a trustee of a trust can be named as a primary beneficiary or as a
contingent beneficiary on any beneficiary designation form. A beneficiary named
in a trust agreement is who is entitled to enforce the terms of the trust
agreement regarding distribution of trust assets to be received by the named
What is the difference
between an heir and a devisee?
Under Arizona law, an heir is entitled to
inherit from a decedent who died without a Will. Heirs are generally related to
a decedent by blood, adoption, or marriage. By contrast, a devisee can receive
property from a decedent simply by being designated in the decedent’s Will and
does not necessarily have to be related to the decedent.
What is an estate?
For estate tax purposes, a decedent’s estate generally includes all property
owned or under decedent’s control immediately prior to death, and includes
assets held in revocable trusts, life insurance proceeds if decedent had
any ownership interests, and innumerable other assets such as real estate, bank
accounts, brokerage accounts, marketable securities, retirement accounts,
automobiles, boats, household furniture, artwork, valuable collections, jewelry,
etc. Contrast with a decedent’s probate estate generally includes property titled in
decedent’s name and property which cannot be titled in decedent’s name but is
under decedent’s control immediately prior to death.
WHAT IS A CONSERVATORSHIP?
A conservatorship is a court procedure where the court, after due process,
appoints a family member, entity or private fiduciary as a “conservator” to
manage the finances and assets of a minor or an adult who is unable to properly
manage his or her own finances. A conservator is generally required to post
bond. The conservator has legal obligations to manage assets for the benefit of
the minor or an incompetent adult. If a person becomes incapacitated, another
person could step in and make decisions for you if you have allowed such
person's name to be listed as an agent on any of your accounts or other assets.
The need for a conservatorship may be eliminated with a durable power of
attorney, a healthcare power of attorney, or both. These powers of attorney can
avoid the costly and time-consuming court procedures that are often required to
establish a conservatorship.
WHAT IS A GUARDIANSHIP?
A guardianship is a court procedure where the court, after due process, appoints
an individual or private fiduciary as guardian to care for the health needs of a
minor or an incapacitated person. The guardian is responsible for providing
proper food, health care, medical attention, housing, and other necessities for
the minor or incapacitated person who is incapable of providing for themselves
on their own accord. The need for a guardianship may be eliminated with a
properly executed healthcare power of attorney.